Ten-year-old children should not be locked up, leading criminologist says

By Jacqueline Maley

UpdatedSeptember 24, 2017 — 3.26pmfirst published at 12.15am

The minimum age of criminal responsibility for children should be lifted from 10 to 14, given mounting evidence of the lifelong harm the justice system does to children, and the huge risk of children becoming "entrenched" in the jail system if locked up young, one of Australia's leading criminologists says.

Children as young as 10 can currently be prosecuted for crimes in all jurisdictions in Australia.

Children as young as 10 should not be prosecuted, a leading criminologist says.Credit:Virginia Star

In Europe the average age of criminal responsibility is 14 and the United Nations has consistently called upon Australia to lift the age of criminal responsibility to at least 12, but preferably to 14, says Professor Chris Cunneen of UNSW.

"Increasing the age of criminal responsibility has the potential to reduce the likelihood of lifelong contact with the criminal justice system. It is well established that one of the key risk factors for criminal justice contact, is prior contact," Professor Cunneen will argue in a paper presented today to the Australian Social Policy conference.

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While the legislated minimum age of criminal responsibility is 10, in Australia the common law doctrine of Doli incapax applies between the ages of 10 and 14.

Doli incapax is a rebuttable presumption that 10- to 14-year-olds do not understand their alleged behaviour is seriously wrong, as opposed to just naughty or mischievous.

The onus is on the prosecution to argue against this presumption and have the children held criminally responsible for their actions.

But Professor Cunneen says in practice the reverse onus often applies. The United Nations has argued the doctrine of doli incapax has been applied inconsistently and fails to provide adequate protection for young children.

"The problem is there is a huge gap between the legal doctrine and what happens in practice. We know well that there are many children who appear in the courts from 10 to 14.

"Some are being sentenced to detention, and we know from the Don Dale inquiry that people like Dylan Voller and other young children involved in tear gassing and isolation had been first sentenced to detention from the age of 11."

The issue of child detention is particularly pertinent to Indigenous young people, who form the majority of kids locked up – nearly 60 per cent of all children in detention in Australia.

Professor Cunneen's research shows that Indigenous boys aged 10 to 12 comprised three-quarters of all children appearing in the NSW Children's Court from 2006 to 2015.

"Children this young should not be prosecuted. It's not that we shouldn't respond to them, but it should be through social support rather than criminalisation."

Professor Cunneen believes a political "law and order" culture at state level has led to children being harmed through the justice system.

He is also concerned by an increasing political culture of contempt for the United Nations and other bodies advocating for human rights.

"There is a common disregard for the UN and human rights standards. We saw that at a federal level when Tony Abbott was prime minister. We saw it in the Northern Territory with chief minister Adam Giles criticising the UN," says Professor Cunneen.

"It's a denigration of the need for human rights bodies internationally to protect citizens, but particularly, in this case, to protect children."

Other bodies including Unicef, Amnesty International, the National Children's and Youth Law Centre, the National Association of Community Legal Centres and Jesuit Social Services have all supported the call to raise the age of criminal responsibility.